Terms And Conditions
Texas Productions Pty Ltd Trading as The Hell Team, and Scorpa Australia.
Conditions of Supply
(Not applicable to export transactions)
Issue date of Conditions: January 2008.
"Catalogue" means the catalogue (in whatever form, whether paper or electronic) in which these Conditions are set out.
"Company" Texas Productions Pty Ltd ABN 002 489 152 trading as "The Hell Team", "Scorpa Australia" or its permitted assigns.
"Conditions" means these terms and conditions.
"Contract" means any contract between the Company and the Customer for the sale and purchase of Supplies.
"Customer" means the person(s) or company whose order for the Supplies is accepted by the Company.
"Goods" means any goods supplied or to be supplied by the Company to the Customer, and includes their packaging and any replacement goods supplied under these Conditions.
"GST" means goods and services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
"Services" means any services supplied or to be supplied by the Company to the Customer, and includes any technical advice, repair or maintenance services provided by the Company or its technical representatives in connection with Goods.
"Supplies" means any Goods or Services.
"in writing" includes electronic communications.
All orders are accepted by the Company subject to and in accordance with these Conditions.
These Conditions override and exclude any terms or conditions in or referred to in any negotiations or course of dealing between the Company and the Customer or set out in the Customer's standard terms and conditions to the fullest extent permitted by law. If there is any conflict between
• the other provisions of this Catalogue and these Conditions; or
• the provisions of the order for the Supplies and these Conditions.
These Conditions will prevail unless the Company agrees otherwise in writing. Together with any terms accepted in writing by the Company in connection with an order, these Conditions constitute the entire agreement between the Company and the Customer in relation to the Supplies ordered. No variation to these Conditions is permitted unless expressly authorised in writing by a director of the Company.
3. Prices and GST
Prices stated in the Catalogue for Supplies are in Australian dollars, exclusive of GST or other duties or taxes and any applicable transport and handling charges, which will be added at the time of despatch. The Company has used all reasonable endeavours to ensure that prices for the Supplies are accurately set out in the Catalogue but these prices are not binding and the Company reserves the right to change its prices without notice at any time. Prices charged will be those prevailing when an order is accepted. Where Supplies are to be made in instalments ('Scheduled Delivery') the price payable for them will be that applicable at the time of despatch of the first batch of Supplies but, where Scheduled Delivery may continue for a period of 90 days or more, the Company reserves the right to charge the Customer further amounts if the price of the Supplies increases before the end of that period.
The Company will issue a tax invoice to the Customer in relation to any supply that is subject to GST. The amount of GST payable will be calculated by multiplying the sum of the price for the supplies plus any additional freight or other charges by the rate of GST applicable at the time of the supply. The words "supply" and "tax invoice" in this Condition 3 have the same meaning as that given to them in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Payment is due not later than 30 days from the date of statement, without any deductions, withholding or set off. Time for payment is of the essence. If the Customer fails to make payment by the due date then, without prejudice to any other right or remedy, the Company shall be entitled to:
i. cancel the order or suspend any further deliveries or performance;
ii. appropriate any payment made by the Customer to such of the Supplies (or the Supplies made under any other contract) as the Company may think fit; and
iii. charge interest (both before and after any judgment) on the amount unpaid at the rate of 2% per annum above the Reserve Bank of Australia's published official interest rate.
The Company reserves the right to charge for copy invoices or credit notes at the rate of $2.50 per copy where the original has been lost or misplaced by the Customer. If legal action is taken to recover monies due to the Company then the Company reserves the right to charge the Customer an amount to cover all and any costs (including legal costs) incurred by the Company.
5. New accounts
A Customer wishing to open a credit account must furnish such information as may be requested by the Company and the Company may make a search with a credit reference agency. The Company reserves the right in its absolute discretion to grant, refuse or discontinue any credit facilities or reduce or suspend any credit limit at any time.
The Company reserves the right to decline to trade with any company or person, or to accept orders for Supplies in part.
To avoid duplication, written confirmation of telephone orders must be clearly marked 'Confirmation only'. The Company will not accept liability for orders not so marked and duplicate orders will be charged accordingly.
The minimum order value for non-account credit or debit card customers is $10.
Once accepted, no order may be cancelled or reduced without the prior written agreement of a director of the Company. Without limiting the generality of this, orders for Goods which are not in catalogue or non stock items may not be cancelled.
Orders for Goods are usually accepted by the Company by despatching the Goods provided, however, that despatch will not be acceptance where the price for the Supplies has been incorrectly quoted or referenced by the Customer in its order.
The Company reserves the right to charge a handling charge of $10 on all orders. Orders for certain Goods, in particular Goods which are not in catalogue or are non-stock items, may be subject to a minimum order quantity or value which the Company will use its reasonable endeavours to notify to the Customer prior to accepting its order.
The Company will use all reasonable endeavours to despatch Goods ordered before 6 p.m. Monday to Friday on the same or next day and all Goods ordered after such times the next two working days, provided that those Goods are in stock.
The Company reserves the right to charge extra for delivery of certain items, for example those that are very large, heavy or hazardous. Any such charge will be notified to the Customer at the time of establishment of its account or placing of the order to which such charge applies.
Where Goods ordered are not in the Catalogue or are non-stock items, it may not be possible for the Company to arrange next day despatch but the Company will make all reasonable endeavours to notify the lead times for such Goods, where known. For more urgent deliveries the Company offers a special next day and same day delivery.
Delivery will be made to the Australian address specified by the Customer.
The Company may use any method of delivery available to it. The Company will use reasonable endeavours to meet delivery and/or performance estimates but, except as set out in Condition 8 below, in no circumstances shall it be liable to compensate the Customer for non-delivery, non-performance or late delivery or performance. Time for delivery and/or performance will not be of the essence.
Overseas Orders: The responsibility of any customs , duty and/or tax charges at point of entry into the Customers country is soley the responsibility of the Customer. The Company cannot and will not pay local delivery taxes and surcharges on Overseas shipments.
8. Inspection, defects and non delivery
The Customer must inspect the Supplies as soon as is reasonably practicable after delivery or, in the case of Services, performance. Except as set out in Conditions 14 or 15 below, the Company shall not be liable under these Conditions for a defect in the Supplies, incomplete or failed delivery, shortage of weight or quantity of Supplies unless written notice is given to the Company within 10 days of the date of inspection.
The Company does not write software comprised in the Goods and it is the Customer's responsibility to check for the presence of computer viruses before the Goods are used.
The quantity of any consignment of Goods, as recorded by the Company upon despatch from the Company's place of business, shall be conclusive evidence of the quantity received by the Customer on delivery, unless the Customer can provide conclusive evidence to the contrary. The Company will not be liable for any non-delivery of Goods or non-performance of Services unless written notice is given to the Company within 10 days of the date when Goods should have been delivered or the Services performed in the ordinary course of events.
Any claim by the Customer under this Condition 8 is subject to the limitation on the Company's liability set out in Condition 15.
All Goods are returned at the Customer's risk and expense and should be undamaged by the Customer and in their original packaging. The Customer is responsible for returning Goods to the Company and for providing proof of delivery of such return.
The Company operates a 21 day return policy. To be accepted for return on this basis, Goods must be returned in their original condition for receipt by the Company within 14 days of. The Customer must return the Goods to "The Returns Department,The Hell Team, Unit 11/78 Reserve road, Artarmon, NSW, 2064." clearly quoting the Customer's account number, order number and description of order.
Any Goods returned after 28 days as 'unwanted' or 'incorrectly ordered' may be accepted at the discretion of the Company but will be subject to a minimum restocking fee of 20% of the invoice value of the Goods (subject to a minimum charge of $10).
Any Goods which are not in the Catalogue or are non-stock items may not be returned under this Condition 9.
All specifications, drawings, illustrations, descriptions and particulars of weights, dimensions, capacity or other details including, without limitation, any statements regarding compliance with legislation or regulation (together "Descriptions") wherever they appear (including without limitation in this Catalogue, on despatch notes, invoices or packaging) are intended to give a general idea of the Supplies, but will not form part of the Contract. If the Description of any Goods differs from the manufacturer's description, the latter shall be deemed to be correct. The Company shall take all reasonable steps to ensure the accuracy of Descriptions but relies on such information, if any, as may have been provided to it by its suppliers and to the fullest extent possible by law excludes all liability in contract or tort or under statute or otherwise for any error in or omission from such Descriptions whether caused by the Company's negligence or otherwise. The Company may make changes to the Supplies as part of a continuous programme of improvement or to comply with legislation.
11. Risk and ownership
The risk of damage to or loss of Goods will pass to the Customer when the Goods are unloaded from the Company's carriers , either at the Customer's premises, or at the port of delivery for Overseas orders. The responsibility of Customs , duty and tax charges is soley that of the Customer. The Company cannot and will not pay local delivery taxes and surcharges on Overseas shipments. Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due from the Customer to the Company for those Goods.
Until ownership passes to the Customer, the Customer must hold the Goods on a fiduciary basis as the Company's bailee, insure the Goods against all usual risks to full replacement value, not pledge or allow any lien, charge or other interest to arise over Goods, and store each delivery of Goods separately, clearly identified as the Company's property and in a manner to enable them to be identified and cross referenced to particular invoices where reasonably possible. The Customer may use or sell Goods in the ordinary course of business, provided that the Customer will be agent for the Company in any sale if Goods are sold. However any such agency will only extend to the obligation to account for proceeds. The Customer will not be bound by any contract between the Customer and the Customer's purchaser. The Customer must account to the Company for that part of the proceeds of any such sale which equates to the price of the Goods and shall hold that amount in a separate bank account on trust for the Company. The Customer will hold on trust for the Company in a separate bank account any insurance monies received by the Customer for Goods owned by the Company.
The Company's rights as an unpaid seller will not be affected by the Company retaining title to Goods under this Condition 11.
If any payment for Supplies is not received in full by the due date, or the Customer becomes bankrupt, passes a resolution for winding up or a court shall make an order to that effect, or a receiver or administrator is appointed over any assets or the undertaking of the Customer or an execution or distress is levied against the Customer, the Customer shall not sell, use or part with possession of the Goods, and the Company shall be entitled, without previous notice and without prejudice to the Company's other remedies, to retake possession of the Goods and for that purpose to enter upon any premises occupied or owned by the Customer.
If the Goods are mixed, processed or used so that they lose their identity or are irrevocably incorporated in, mixed with or applied to other goods to make another item, then ownership of the Goods will pass to the Customer, however a portion of proceeds of sale of any such item equivalent to the cost for the unpaid Goods remains in trust for the Company until payment for the Goods is made in full.
This Catalogue including images and descriptions remains at all times the sole and exclusive property of the Company.
12. Quality Assurance
All Goods detailed in the Catalogue have been processed in strict accordance with standard quality practices.
13. Performance and fitness for purpose
Subject to Condition 15:
(i) unless any performance figures, tolerances or characteristics have been specifically and expressly warranted by a director of the Company in writing, the Company accepts no liability for any failure of the Supplies to comply with such criteria, whether attributable to the Company's negligence or otherwise; and
(ii) the responsibility for ensuring that Supplies are sufficient and suitable for a particular purpose is the Customer's, unless specifically stated in writing by a director of the Company. Any advice or recommendation given by an employee of the Company which is not confirmed in writing by a director of the Company is acted on entirely at the Customer's risk and the Company shall not be liable for any such advice or recommendation which is not so confirmed.
The Company will endeavour to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer of Goods.
In addition, the Company will, free of charge, repair or, at the Company's option, replace Goods which are proved to the reasonable satisfaction of the Company to be damaged or defective due to faulty materials, workmanship or design for a period of 1month after despatch of the Goods. Software is supplied on the strict understanding that the Company does not warrant their function to be free from defects or error. This obligation will not apply:
• if the defect arises because the Customer has altered or repaired such Goods without the written consent of the Company;
• if the defect arises because the Customer did not follow the manufacturers' instructions for storage, usage, installation, use or maintenance of the Goods;
• if the Customer has failed to notify the Company of any defect in accordance with Condition 8 where the defect should have been reasonably apparent on reasonable inspection; or
• if the Customer fails to notify the Company of the defect within 1 month(or such other period as the Company shall specify at the time of acceptance of the order for the Supplies) of the date of despatch of the Goods.
Any replacement Supplies made or Goods repaired under this Condition 14 will be guaranteed on these terms for any unexpired portion of the period of guarantee given on the original Supplies. Any Goods which have been replaced will belong to the Company.
The Customer grants to the Company and its employees, agents and representatives a right to enter onto its premises to effect any repair or replacement under this Condition 14. The Customer shall ensure that the Company's employees, agents and representatives are provided with a safe and secure working environment while at its premises and the Customer shall be responsible for isolating any computers or processors requiring repair or replacement from its network and for making back-up copies of any information on such computers or processors before the Company's arrival on site.
15. Exclusion of Liability
Subject to this Condition 15:
• these Conditions set forth the full extent of the Company's obligations and liability to the Customer with respect to the Supplies under any Contract; and
• all other terms, conditions, warranties and representations that might otherwise be implied by statute or otherwise, are hereby expressly excluded.
To the fullest extent permitted by law and subject only to any express exceptions contained in these Conditions, the Company will be under no liability to the Customer whatsoever (whether in contract, tort, (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct or indirect or consequential loss (all of which terms include, without limitation, pure economic loss, loss of profits, loss of business, loss of use, loss of data, computer downtime, depletion of goodwill, business interruption, increased purchasing or manufacturing costs, loss of opportunity, loss of contracts and like loss) howsoever caused or arising out of or in connection with:
• Any of the Supplies, or the manufacture, sale, performance or supply or failure or delay in performance or supply of the Supplies by the Company or on part of the Company's employees, agents or sub-contractors;
• Any breach by the Company of any of the express or implied terms of the Contract;
• Any use made or resale or on-supply of any of the Supplies or any product incorporating any of the Goods or developed using the Supplies;
• Any acts or omissions of the Company at the Customer's premises;
• Any statement made or not made or advice given or not given by or on behalf of the Company, including as to compliance with legislation or regulation; or
• Otherwise under the Contract.
The Company does not exclude, restrict or modify any liability that cannot be excluded, restricted or modified by law including liability under the Trade Practices Act 1974 (Cth) or equivalent State legislation. However, where such statutory provisions apply, or where the Customer is entitled to claim under an express provision of these Conditions (including Conditions 8, 10, 13 and 14), then to the extent permitted by law the Company's total liability shall be limited at its option to:
• in the case of a supply of Goods, either the replacement of the Goods; or supply of equivalent Goods; or the payment of the cost of replacing the Goods; or the payment of the cost of acquiring equivalent Goods; or the repair of the Goods; or the payment of the cost of having the Goods repaired; or
• in the case of a supply of Services, either the supply of the Services again; or the payment of the cost of having the Services supplied again.
Each of the Company's employees, agents and sub-contractors may rely on and enforce the exclusions and restrictions of liability in these Conditions (including Conditions 8, 10, 13, 14, 15 and 16) in that person's own name and for that person's own benefit.
The Company will make all reasonable efforts to inform the Customer of the pending obsolescence or replacement of any Goods but accepts no liability for failing to do so in a timely manner or at all, nor for failing to provide details of possible or appropriate substitutes or for failing to provide the service in the manner or at the times anticipated. It is the responsibility of the Customer to determine whether the Goods suggested are suitable for the Customer's intended use and no representations or warranties are provided in this regard.
The Company will make all reasonable efforts to assist the Customer in identifying and/or procuring suitable Goods but accepts no liability for failing to do so in a timely manner or at all nor for failing to source possible or appropriate Goods or for failing to provide the service in the manner or at the times anticipated. It is the responsibility of the Customer to determine whether the Goods are suitable for the Customer's intended use and no representations or warranties are provided in this regard.
17. Intellectual property rights
The Supplies in this Catalogue may be subject to the intellectual and industrial property rights (including patents, knowhow, trademarks, copyright, design rights utility rights, database rights and/or other rights) of third parties. No right or licence is granted to the Customer, except the right to use the Supplies or re-sell the Goods in the Customer's ordinary course of business. The Company shall have no liability whatsoever in the event of any claim of infringement of any such rights howsoever arising.
In particular, without limiting the above, title in any software program forming all or any part of the Goods is reserved to the Company and/or its suppliers. The Customer is responsible for informing itself of the terms of its licence or use and paying any royalty payable.
The Company owns full copyright in respect of this Catalogue and its reproduction in whole or part is prohibited without the Company's prior written consent.
18. Use of Personal Information
"Personal Information" means, any information or opinion in any form, whether true or not, about the Customer and any representative who places an order on behalf of the Customer or who is named in that order, who is a living individual and whose identity is apparent or can be reasonably ascertained from the information or opinion.
The Company may collect and disclose Personal Information received from the Customer or from third parties for all purposes contemplated in these Conditions or arising in the context of the relationship between the Company and the Customer including:
i. Deciding whether to enter into any contract or arrangement with that Customer. This may include assessment of the Customer's application for a commercial credit account, conducting commercial and consumer credit reference searches against a Customer and any representative who places an order on behalf of the Customer or who is named in that order and the disclosure of information to a credit reporting agency as to how that Customer conducts its account;
ii. Order fulfilment, administration, customer services, profiling the Customer's purchasing preferences and to help to review, develop and improve the Company's business and the goods and services it offers;
iii. Direct marketing of the Company's products and services , whether by post, fax, telephone, email, SMS, MMS or otherwise;
iv. Crime prevention, detection of unlawful activities; or
v. When required by law.
The collection and disclosure of the Personal Information may involve:
i. The disclosure of that Personal Information to the Company's service providers and agents;
ii. The disclosure of Personal Information to third parties whose products and services the Company believes may be of interest to that Customer or representative;
iii. The transfer of Personal Information outside of Australia, including to countries whose laws may not provide adequate protection to Personal Information. The Company will only transfer Personal Information outside Australia to companies who have guaranteed to the Company at least the same level of protection as that Personal Information would have received in Australia.
The Company may hold Personal Information on a database to be used by the Company for order fulfilment, administration, marketing, credit checking, security, customer services, profiling the Customer's purchasing preferences and to help the Company to understand and develop its business, including new and innovative products and services.
By placing an order, the Customer and any representative who places an order on behalf of the Customer or who is named in that order is taken to consent to the collection and disclosure of Personal Information set out in this Condition 18. Where the Personal Information relates to an individual other than the Customer, the Customer agrees that he or she has the authority of that individual to consent on their behalf. If, at any time, the Customer or its representatives does not wish his or her Personal Information to be used for any or all of the purposes set out in this Condition 18, he or she should contact the Marketing Manager,The Hell Team, Unit 11, 78 Reserve Road, Artarmon, NSW, 2064. or notify any of our sales representatives when placing an order by phone. This may curtail the service which the Company can offer and the Company may need to vary the terms of the Contract accordingly.
In the event that the Company sends promotional material to the Customer in relation to goods or services available from the Company, these Conditions shall apply to all Supplies purchased from such material.
20. Country of origin
Unless otherwise confirmed by the Company in writing, nothing in this Catalogue is to be taken as representation of the source of origin, manufacturer or production of the Goods or any part of them.
21. Age requirements for certain Goods
Where the law requires a minimum age for the purchase of certain Goods, the Customer confirms that he or she is over the required age and that delivery of the Goods will be accepted by a person over the relevant age limit.
22. Force majeure
The Company shall not be liable to the Customer in any manner or be deemed to be in breach of these Conditions because of any delay in performing or any failure to perform any of the Company's obligations under these Contract if the delay or failure was due to any cause beyond the Company's reasonable control (which shall include, but not be limited to government actions, war, fire, explosion, flood, import or export regulations or embargoes, labour disputes or inability to obtain or a delay in obtaining supplies of Goods or labour). The Company may, at its option, delay the performance of, or cancel the whole or any part of a Contract.
23. Legal construction
All Contracts shall be governed by and interpreted in accordance with New South Wales law and the Customer submits to the jurisdiction of the New South Wales Courts and Courts able to hear appeals from those Courts, but the Company may enforce such Contract in any court of competent jurisdiction.
Any provision of these Conditions of Supply which is held by any competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the other provisions of these Conditions and the remainder of such provision shall not be affected. Failure by the Company to enforce or partially enforce any provision of these Conditions will not be constrained as a waiver of any rights under these Conditions.
The Company shall be entitled, without the consent of or notice to the Customer, to assign the benefit, subject to the burden, of these Conditions and/or any Contract to a related body corporate (as defined in section 50 of the Corporations Act 2001 (Cth) at any time.
These conditions supersede all previous terms and conditions which have previously governed a contract for the sale of Supplies from the Company to the Customer.